Bombay High Court
Jayprakash Education Society And ... vs The State Of Maharashtra Through ... on 5 May, 2017
Bench: Shantanu S. Kemkar
WP-13818-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13818 OF 2016
1 Jayprakash Education Society,
Peth Vadgaon, Tal.Hatkanangale,
District Kolhapur.
Through its Chairman.
2 Dr.Babasaheb Amedkar College,
Barrister Tatyasaheb Mane Vidyanagar,
Peth Vadgaon, Kolhapur
Through its Principal ... Petitioners
V/s.
1 The State of Maharashtra,
Through the Secretary, Higher
and Technical Education Department,
Mantralaya, Mumbai 400 032.
2 The Divisional Joint Director,
(Higher Education), Kolhapur Region,
Kolhapur. Having Office at
Rajaram College Campus,
Vidyanagar, Kolhapur 416 003.
3 Shivaji University, Kolhapur,
Vidyanagar, Kolhapur 4167 003.
4 The Director, College & University
Development Board, Shivaji University,
Kolhapur. ... Respondents
Mr.Narendra V. Bandiwadekar, Advocate for the Petitioners.
Mr.C.P.Yadav, Asstt. Goverment Pleader for the Respondent Nos.1
and 2.
Mr.Amit Borkar, Advocate for the Respondent No.4.
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CORAM : SHANTANU S. KEMKAR &
A. M. BADAR JJ.
DATED : RESERVED ON 28th April 2017
PRONOUNCED ON 5th May 2017
ORAL JUDGMENT : (PER CORAM : A.M.BADAR)
Rule. Rule made returnable forthwith. With consent
of parties, heard finally.
2 By this petition, petitioners - Education Society and
the College run by it at village Peth-Vadgaon in Hatkanangale
taluka of Kolhapur district are challenging the order dated
10/11/2016 passed by the respondent No.4 Director, College and
University Development Board of Shivaji University, Kolhapur, so
far as it relates to refusal to grant first time affiliation to petitioner
No.2 college in respect of new subject of N.C.C. - Elective in
Bachelor of Art Course and to start new Faculty in Science.
Petitioners are praying for directing respondent Nos.3 and 4 to
grant first time affiliation to petitioner No.2 Dr.Babasaheb
Ambedkar College, Peth-vadgaon for new subject of N.C.C. -
Elective in B.A. Course and for staring new Faculty of Science.
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3 It is case of petitioners that vide orders dated 4 th July
2016, the first Respondent State of Maharashtra has been pleased
to grant permission to petitioners to start Science Faculty on
permanent non-grant basis as well as new subject NCC - Elective
in B.A. Course under Section 83(5) of the Maharashtra
Universities Act, 1994 ("University Act" for the sake of brevity).
However, by the impugned order dated 10 th November 2016,
respondent No.4 Director has illegally rejected first affiliation to
the petitioner No.2 College for starting the new subject NCC -
Elective and new Faculty in Science.
4 Heard the learned Advocate appearing for petitioners
at sufficient length of time. He vehemently argued that petitioner
No.2 College, in pursuant to the order dated 4 th July 2016 (Exhibit
'A') of the State has already admitted students in B. Sc. Part-I
course. Respondent No.3 University has already accepted
eligibility fees of students who are admitted by the college for
prosecuting B.Sc. Part-I course. Examination center has also been
assigned to students admitted by petitioner No.2 College in B.Sc.
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Part-I course. The learned Advocate for petitioners further argued
that once the State Government has granted permission to
petitioners for starting new subject in B.A. course as well as for
starting new Faculty in Science, it was not open for respondent
Nos.3 and 4 to refuse affiliation to the new Faculty in Science and
new subject in B.A. course. Entire procedure prescribed for
opening the new Faculty as well as starting new subject in B.A.
course has been followed by petitioners. He further argued that
petitioner No.2 College had complied all terms and conditions in
this regard and as such, the impugned order dated 10/11/2016
refusing affiliation for starting new subject as well as new Faculty
is totally illegal. It is further argued that observations and
conditions mentioned in the impugned order dated 10/11/2016
are totally incorrect. Discrepancies mentioned in the impugned
order dated 10/11/2016 are totally erroneous and contrary to the
record. The learned Advocate further argued that the Committee
has declined to peruse the record and hurriedly concluded the
inspection. He drew our attention to pleadings in the petition
showing that there are no discrepancies and shortfalls as are
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reflected in the impugned order dated 10/11/2016. The learned
Advocate for petitioners further argued that the impugned order
dated 10/11/2016 does not disclose the reason of non-inclusion in
the 'Perspective Plan', for refusing to grant first time affiliation for
starting new subject in B.A. course as well as new Faculty in
Science. The learned Advocate submitted that when the
impugned order refusing to grant affiliation does not contain this
reason, respondent Nos.3 and 4 cannot justify the impugned order
by supplementing it by the fresh reason to the effect that the
village Peth-vadgaon was not included in the Perspective Plan. For
this purpose, he placed reliance on judgment in the matter of
Mohinder Singh Gill & Anr. v. The Chief Election
Commissioner, New Delhi and others 1. Similarly, reliance is also
placed on judgment in the matter of Shree Chhatrapati Shivaji
Education Society v. State of Maharashtra and Ors.2 to buttress
the contention that even though Perspective Plan does not make
provisions for opening a new Faculty or new subject, the affiliation
can be granted on the basis of permission from the State.
1 AIR 1978 SC 851
2 2003 (6) Bombay Cases Reporter 487
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5 As against this, the learned Advocate appearing for
respondent Nos.3 and 4 drew our attention to the fact that
Perspective Plan prepared by respondent No.3 Shivaji University
has provided for opening Science Faculty in a college existing at
village Hatkanangale, but it is not providing for opening of new
Science Faculty at village Peth-vadgaon. It is also pointed out that
the Perspective Plan does not contain provisions for opening new
subject in B.A. course at village Peth-vadgaon. In submission of
the learned Advocate appearing for the respondent Nos.3 and 4
village Peth-vadgaon, where petitioner No.2 Dr.Babasaheb
Ambedkar College exists comes under Hatkanangale taluka of
Kolhapur district. Villages/towns - Ichalkaranji, Hatkanangale and
Pulachi-shiroli were shown in the Perspective Plan prepared by
respondent No.3 University for opening new Faculty/College, but
village Peth-vadgaon in Hatkanangale taluka was not included in
the Perspective Plan for opening either a new Faculty or a new
subject. In submission of the learned Advocate appearing for
respondent Nos.3 and 4, the Scrutiny Committee inadvertently
interpreted the Perspective Plan and considered that village Peth-
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vadgaon comes under Hatkanangale taluka and, therefore, a
Committee was sent for inspection of petitioner No.2 College. The
learned Advocate further argued that as village Peth-vadgaon was
not included in the Perspective Plan prepared by the University,
there was no question of grant of affiliation to new Faculty in
Science and new subject in B.A. course to petitioner No.2 college
which is situated at village Peth-Vadgaon. It is further argued that
petitioner No.2 college ought not to have admitted students in
prosecuting B.Sc. Part-I course as there was no affiliation to that
course. Those students cannot be termed as 'students' as per
provisions of Section 94 of the University Act. The University has
already directed to transfer those students to nearby affiliated
college. The learned Advocate appearing for respondent Nos.3
and 4 relied on judgments of the Division Bench of this Court in
the matter of Dr. Punjabrao Deshmukh Memorial Educational
Society v. Nagpur University & Ors.3 and Social Society, Morba
v. The Principal Secretary, Higher and Technical Education
Department, Mumbai4 to substantiate his contention that it is
3 1997(2) Mh.L.J. 276
4 2011 (4) Mh.L..J. 316
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the duty of the University to examine as to whether opening of the
proposed Faculty and subject is in conformity with the Perspective
Plan prepared under Section 82 of the University Act and whether
the college complies with all other mandatory eligibility criteria.
6 It is a stand of respondent No.1 State of Maharashtra,
reflected from its affidavit that in exercise of powers conferred to
it under Section 83(5) of the University Act, it has granted
permission to petitioners to start new Faculty in Science as well as
new subject of N.C.C. - Elective in B.A. course. However, grant of
affiliation is exclusively within the jurisdiction of the University
and the State of Maharashtra has no role to play in the matter.
7 We have carefully considered the rival submissions and
also perused pleading and affidavits of parties.
8 At the outset we may mention that it is settled
principle of law that when the law requires a particular thing to be
done in a particular matter, it has to be done in that manner alone
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or not at all. Valuable reference can be had to this proposition
from judgments of the Supreme Court in case of Dhananjaya
Reddy v. State of Karnataka5 and Babu Varghese & Ors. v. Bar
Council of Kerala6. In the light of this settled proposition of law,
we will have to consider the another proposition enunciated in the
matter of Mohinder
Singh Gill & Anr. (supra)
which is to the
effect that when the statutory functionary makes an order based
on certain grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reason in the
shape of affidavit or others.
9 It is not in dispute that respondent no.3 University had
prepared a perspective plan in terms of provisions of Section 82 of
the University Act for the academic year 2015-16 and 2016-17 as
per norms prescribed by the State Government. Hatkanangale
Taluka of Kolhapur district is certainly finding its place in the
perspective plan prepared by respondent no.3 - Shivaji University,
Kolhapur. Three towns / villages from that Hatkanangale Taluka
5 (2001) 4 SCC 9
6(1999) 3 SCC 422
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of Kolhapur were selected for opening new colleges and faculties.
Those three towns / villages from Hatkanangale Taluka are
Ichalkaranji, Hatkanangale and Pulachi-Shiroli. Need of opening
science faculty was found at Village Hatkanangale whereas need
of opening the College of Pharmacy, the Law College and the
Science faculty was found at town Ichalkaranji of Hatkanangale
Taluka. Pulachi-Shiroli in Hatkanangale Taluka was found to be in
need of Arts, Commerce and Science College. It is not in dispute
that petitioner no.2 - Dr.Babasaheb Ambedkar College is situated
in Village Peth Vadgaon in Hatkanangale Taluka. This Village Peth
Vadgaon is not finding its place in the perspective plan prepared
by respondent no.3 - Shivaji University for opening new college
or faculty etc. Bare perusal of Section 82 of the University Act
which deals with procedure for permission to open new college or
faculty etc. shows that the University while preparing the
perspective plan has to keep in mind equitable distribution of
facilities for higher education having due regard to the need of
unserved and undeveloped areas within its jurisdiction. It is, thus,
seen that the University is required to apply its mind and to locate
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where genuine need for opening new college or faculty is there in
areas within its jurisdiction. Parties are not at dispute that Village
Peth Vadgaon in Hatkanangale Taluka was not included in the
perspective plan prepared by the University for the academic year
2015-16 and 2016-17.
10 At this juncture, it is apposite to quote only relevant
provisions of Sections 82 and 83 of the Maharashtra Universities
Act, 1994. They read thus :
Section 82 - Procedure for permission:-
(1) The university shall prepare a perspective plan and
get the same approved by the State Council for Higher
Education for educational development for the location
of colleges and institutions of higher learning in a
manner ensuring equitable distribution of facilities for
Higher Education having due regard, in particular, to
the needs of unserved and under-developed areas
within the jurisdiction of the university. Such plan shall
be prepared by the Board of College and University
Development, and shall be placed before the Academic
Council and the Senate through the Management
Council and shall, if necessary, be updated every year.
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(2) No application for opening a new college or
institution of higher learning, which is not in
conformity with such plan, shall be considered by
the university.
(3) The managements seeking permission to open
a new college or institution of higher learning shall
apply in the prescribed form to the Registrar of the
University before the last day of October of the
year, proceeding the year from which the
permission is sought.
(4) All such applications received within the
aforesaid prescribed time-limit, shall be scrutinised
by the Board of College and University
Development and be forwarded to the State
Government with the approval of the Management
Council on or before the first day of May of the
year with such recommendations (duly supported
by relevant reasons) as are deemed appropriate by
the Management Council.
(5) Out of the application recommended by the
university, the State Government may grant
permission to such institutions as it may consider
right and proper in its absolute discretion, taking
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into account the State Government's budgetary
resources the suitability of the managements
seeking permission to open new institutions and
the State level priorities with regard to location of
institutions of higher learning.
(5A) ..........
(5B) Notwithstanding anything contained in this
Act or any other law for the time being in force, on
and from the date of commencement of the
Maharashtra Universities (Second Amendment)
Act, 2013,-
(a) no management shall establish or open a
new college or an institution of higher learning
in the State, except with the prior permission of
the State Government;
(b) no management shall start a new course of
study, subject, faculty or additional division,
except with the prior permission of the State
Government.
Section 83 - Procedure for affiliation:-
(1) On receipt of the permission from the State
Government under section 82 the Academic
Council of the university shall consider grant of
first time affiliation to the new college or
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institution by following the prescribed procedure
given in sub-section (2) and after taking into
account whether and the extent to which the
stipulated conditions have been fulfilled by the
college or institution. The decision of the Academic
Council in this regard shall be final.
(2) For the purpose of considering the application
for the grant of affiliation the Academic Council
shall cause an inquiry by a committee constituted
for the purpose by it.
(3) ......
(4) .....
(5) The procedure referred to in sections 82,
except the second proviso to sub-section (5)
thereof, shall mutatis-mutandis, apply for the
permission to open new courses and additional
Faculties. The procedure for permission for starting
new subjects and additional divisions in the
existing colleges and institutions shall be such as
may be prescribed by the State Government, from
time to time.
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(6) No student shall be admitted by the college or
institution unless the first time affiliation has been
granted by the university to the college or
institution.
11 Perusal of sub-section (2) of Section 82 shows that no
application for opening a new college or institution of higher
learning which is not in conformity with the perspective plan can
be considered by the University. Sub-section (5) of Section 83
makes it clear that procedure referred to in Section 82 of the
University Act applies mutatis-mutandis for the permission to
open new courses, additional faculties etc. In the case in hand, it
is explicitly clear that Village Peth Vadgaon was not selected in the
perspective plan for opening new faculty or new subject by
respondent no.3 Shivaji University, Kolhapur. Mandate of Sections
82 and 83 of the University Act provides that unless and until
name of the place where new colleges, new courses and additional
faculties figures in the perspective plan, there cannot be affiliation
by the University for opening such colleges, courses or faculties.
The law requires that affiliation can be granted only if the
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proposal for affiliation is fulfilling condition prescribed by Sections
82 and 83 of the University Act. Therefore, law laid down by the
Supreme Court in the matter of Dhananjay Reddy (supra) and
Babu Varghese (supra) squarely applies to the case in hand and
no fault can be found in the impugned order dated 10 th November
2016 passed by respondent no.4 - Director rejecting preliminary
affiliation to faculty in science and new subject NCC - Elective for
B.A. Course proposed by petitioners.
12 In the matter of Chhatrapati Shivaji Education
Society (supra) relied by the learned counsel for petitioners, the
petitioner Society therein was having 100 bedded Ayurvedic
Medical Hospital at Village Mayani, Taluka Khatav. It was stated
to be a drought prone area in the hilly region having social
disadvantage to the population thereat. Applications for opening
medical college were invited by the University of Health Sciences
but the application of the petitioner came to be rejected by
respondent no.2 University therein as the proposal was not in
consonance with the perspective plan. However, after considering
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the need of Ayurvedic Hospital in the hilly region of Western
Ghats, the State Government took the decision to approve the said
proposal in the said matter. In the said matter, the State
Government was satisfied about the requirement of establishing
the medical college and had issued "Essentiality Certificate" and
forwarded it to the Central Council of Indian Medicine. That
certificate was containing details about existing Ayurvedic
institutions, Ayurvedic doctors etc. as well as desirability of
establishing Ayurvedic Medical College at Village Mayani in the
public interest. In the said matter, even the University had
directed the petitioner / society to appoint qualified teaching as
well as non-teaching staff. After making extensive search, such
staff came to be appointed by the petitioner / society. While
deciding that matter, in paragraph 7, the Division Bench of this
court has categorically held that there can be no doubt that the
perspective plan prepared by the University under Section 82 of
the Maharashtra University Act, 1994 is binding on the State
Government and the State Government cannot grant permission
to open a technical college for higher technical education or a
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medical college, contrary to the perspective plan prepared by the
University. However, the Division Bench of this court further
noted that the Expert Committee appointed by the University for
granting affiliation to the Ayurvedic College pointed out many
shortcomings and the University had directed the said college to
remove those shortcomings. That shortcomings were removed by
spending huge capital expenditure. Not only that, the Division
Bench further noted in the said matter that the University had
directed the petitioner therein to provide separate hostels for boys
and girls, to purchase books and provide for laboratory
equipments. All those requirements were found to be fulfilled by
the college. On these peculiar facts in the said matter, the Division
Bench of this court was pleased to allow that petition filed by the
Shree Chhatrapati Shivaji Education Society by balancing the
equities. The said case proceeded on its peculiar facts. The ratio
which can be culled out from the said judgment is to the effect
that there cannot be affiliation to the college or faculty without
Perspective Plan. Therefore, the said judgment cannot advance
the cause of the petitioners. In the instance case, petitioner no.2
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College was categorically informed by respondent no.3 University
by communication dated 6th May 2016 that recommendation of
the State should not be considered as approval of the State and
admission should not be effected unless the College gets
preliminary affiliation. Still, petitioner no.2 has admitted students
in first year degree course of B.Sc. and that too, without
preliminary affiliation to it.
13 The learned advocate appearing for the Respondent
Nos.3 and 4 rightly relied upon the judgments of the Division
Bench of this Court in the matter of Dr. Punjabrao Deshmukh
Memorial Education Society (Supra) and the Social Society,
Morba (Supra). In the matter of Dr. Punjabrao Deshmukh
Memorial Education Society (Supra), this Court after
interpreting provisions of Sections 82 and 83 of the University
Act, 1994 categorically prohibited the State Government from
entertaining any application directly for the purpose of grant of
permission to open new college. It is held that Section 83(5) of
the said Act makes a provision that the procedure referred to in
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Section 82(1) to (6) shall apply mutatis-mutandis for permission
to open new course, additional faculties, new subjects and
additional divisions. With such observations, the Division Bench of
this Court has upheld the decision of the Nagpur University
rejecting the decision of the State of Maharashtra to grant
permission to start M.S.W. degree course. In the matter of Social
Society, Morba (Supra), the challenge was to the communication
dated 6.11.2010 from the Higher and Technical Education
Department of State informing the Petitioner that in view of the
Government policy of not starting any new Arts, Science or
Commerce College, the request of the Petitioner to grant
permission to start Science College for women for the Academic
Year 2010-2011 cannot be considered. The Division Bench of this
Court while deciding that matter relied upon the judgment of this
Court in the matter of the Maharashtra Cosmopolitan Education
Society v. University of Pune and Ors.7 wherein it is held that
the scheme of Sections 81, 82 and 83 of the University Act, 1994
shows that the university is the final arbiter on matters decided by
7 2000(1) Mh.L.J. 424
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it under Section 83(3) of the said Act. Paragraphs 16 and 17 of
that judgment needs re-production and they read as under:
"16. In substance, the principle expounded in this
decision is that on matters which the Academic
Council of the University has to decide in terms of
section 83(3) of the Act, which includes whether
affiliation should be granted or rejected, etc., the
University itself has to take decision on the said
matters without seeking prior approval of the State
Government, if no financial implication was
involved to the Government. In cases where the
Management intends to start new College on non-
grant basis and without taking any other aid from
the Government, it necessarily follows that there
would be no financial implication to the State
Government if affiliation is granted to such College
by the University. The University, however, is
expected, by virtue of section 82 of the Act, to
ensure that the affiliation to be granted by it for
opening a new College or Institution of higher
learning must be in conformity with the perspective
plan. In the present case, the fact that the University
has repeatedly approved the proposal of the
petitioner for starting a new Women's Degree
College in Science Faculty at post Morba, Taluka
Mangaon, District Raigad, it presupposes that as per
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the extant perspective plan prepared by the
University under section 82, opening of such new
College is in contemplation. Thus, applying the
principle expounded in the case of Maharashtra
Cosmopolitan Education Society (supra), which
decision, we are informed, has become final and no
contrary view thereto has been taken, the
petitioner's proposal having been approved by the
University to start a new College, which concededly
is on no-grant basis and without taking any other
assistance or aid from the Government, the
University itself could proceed to grant affiliation to
the said College without seeking prior approval of
the State Government. A priori, the question of
forwarding the petitioner's proposal to the State
Government by the University does not arise,
whether be it for A.Y 2010-2011 or for that matter
for A.Y 2011-2012 as the case may be. Instead, the
University itself has to take the final decision on
whether to grant affiliation to the new college
proposed by the petitioner, subject to compliances of
all mandatory requirements in that behalf.
17. We are in agreement with the argument
canvassed before us by the Counsel for the
University that on such interpretation, the opening
part of section 83(1) of the Act which refers to the
factum of permission from the State Government
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under section 82 will be applicable only in respect
of proposed new colleges which are looking forward
to take aid from the State Government, financial or
otherwise. However, if the institute such as the
petitioner (which incidentally is also a minority
institute) intends to start a new college on
permanent no grant-in-aid basis and without taking
any other assistance or aid from the Government,
the question of obtaining prior permission of the
State Government under section 82(5) of the Act
would not arise at all as that condition is
inapplicable to such institutes/colleges. In such
cases, however, the Academic Council of the
University ought to examine as to whether opening
of the proposed college is in conformity with the
perspective plan prepared under section 82 and the
college also complies with all other mandatory
eligibility criterion."
14 It is thus, clear that it is the duty of the University to
ensure that the request for affiliation should be in conformity with
the Perspective Plan. The University is required to examine
whether the proposed faculty or subject is in conformity with the
perspective plan prepared under Section 82 of the University Act.
This is so because while preparing perspective plan, equitable
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distribution of facilities for Higher Education, need of unserved
and under-developed areas within the jurisdiction of concerned
university are relevant considerations. As such, the places ear-
marked in the perspective plan can only be considered for opening
new college, faculty or new subject. For ear-marking such places,
the University is required to consider relevant factors as provided
in Section 82 of the University Act. Therefore, unless and until the
place is ear-marked in the Perspective Plan, affiliation for opening
new college, course or subject cannot be granted.
15 In the wake of foregoing discussion it is clear that for
want of inclusion of Village Peth Vadgaon in the Perspective Plan
prepared by respondent no.3 Shivaji University, petitioners were
not entitled for applying for opening new faculty or new subject in
the existing course. The application moved by petitioners for
opening the science faculty as well as for permission to start new
subject i.e. NCC - Elective in B.A. Course could not have been
validly entertained as Village Peth Vadgaon was not included in
the Perspective Plan. Grant of prayer made by petitioners would
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amount to violation of provisions of Sections 82 and 83 of the
University Act, 1994. The statute i.e. the Universities Act, 1994,
prescribes the procedure for applying for permission to start new
faculty as well as new subject. When the law provides the mode
and manner in which a new faculty and a new subject is required
to be started, permission to start such faculty or subject is required
to be granted in the prescribed manner alone. Therefore, we do
not find any substance in contention of the learned counsel for
petitioners that respondent nos.3 and 4 - University cannot be
permitted to support the impugned order by supplementing it by
fresh reason.
16 In view of foregoing reasons, the petition is devoid on
merit and therefore the same is dismissed.
17 Rule discharged.
(A. M. BADAR, J.) (SHANTANU S. KEMKAR, J.)
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